Deceased individuals' privilege protection survives their death, and bankrupt companies can also claim privilege protection under certain circumstances (although it may be owned by a trustee). But as the court in Affiniti Colorado, LLC v. Kissinger & Fellman, P.C., asked, "[d]oes the attorney-client privilege survive [a] corporation's dissolution?" Not surprisingly, the issue almost always involves documents in the possession of the former corporation's law firm. Court of Appeals No. 19CA0574, 2019 Colo. App. LEXIS 1370, at *2 (Colo. App. Sept. 12, 2019).
In Affiniti Colorado, plaintiff filed a malpractice action against defendant law firm for alleged misrepresentations in an opinion letter the firm sent on behalf of a now-dissolved corporation. The law firm "urge[d] [the court] to follow the well-settled general rule that the privilege survives the death of a natural person." Id. at *17. But the court rejected that analogy, noting that: (1) corporations' managers change over time, so there is no assurance that some future manager will not waive their privilege; (2) "corporations do not have friends or family who could be embarrassed or harmed" by post-dissolution disclosure; (3) "unlike an individual, whose estate can be sued civilly, once a corporation is fully dissolved, any suit brought against it must be filed within two years." Id. at *20. After finding that "no one with the authority to act on behalf of [the dissolved corporation] remains to invoke or waive the privilege," the court upheld the lower court's ruling that the dissolved corporation's former law firm could not successfully assert privilege protection for the now-dissolved corporation's documents in its files. Id. at *22.
Although the law often treats corporations as if they were "persons," sometimes the privilege applies in very different ways to such entities.
